Recent New Jersey Insurance Decisions

What is a four-wheel passenger auto? That was a question that recently was answered by the New Jersey Appellate Division in Starner v. Haemmerle, No. A-0153-17T2, 2018 WL 5273995 (N.J. App. Div. Oct. 24, 2018). Specifically, the issue before the court was whether an all-terrain vehicle (ATV) qualified as a “four-wheel passenger auto” under an automobile liability policy. The trial court held that it did. On appeal, however, the Appellate Division reversed the trial court’s decision.

The insurer in that case, Government Employees Insurance Company (GEICO), issued an automobile liability policy to the parents of Bailey Snyder. The policy provided coverage for, among other things, a “private passenger auto,” which was defined as “a four-wheel private passenger, station wagon or jeep type auto.”

Ms.Snyder, who was 14 at the time, was driving an ATV with several passengers. The ATV was owned by a third party. Ms. Snyder lost control of the ATV, causing injuries to Hanna Starner, one of her passengers. Ms. Starner subsequently sued the owner of the ATV and Ms. Snyder. Ms. Snyder sought coverage under her parents’ insurance policy. Unfortunately, the ATV was neither registered nor insured.

The trial court concluded that the ATV qualified as a four-wheel passenger auto because it had four wheels and had the capacity to transport passengers. The court further noted that a registered ATV can be operated on public roadways, albeit in extremely limited circumstances. Specifically, a registered ATV can be used to cross, or be driven adjacent and parallel to, a highway to get to an area whereATVs can be driven.

The Appellate Division reversed the trial court. The court held that is was bound by the New Jersey Supreme Court’s decision in Wilno v. New Jersey Manufacturers Ins. Co., 89 N.J. 252 (1982). In Wilno, rather than write a separate opinion, the Court simply adopted the dissenting opinion in the court below. In that opinion, former Judge Allcorn, relying on the dictionary definition of automobile, held that a dune buggy was not a private passenger automobile. In reaching his conclusion, Judge Allcorn emphasized, among other things, “the unusual dangers presented by dune buggies, due to their construction and their intended use as high-risk off-road recreational vehicles.”

After discussing Wilno, and summarizing and contrasting various statutory provisions that apply to automobiles with those that apply to ATVs, the court reasoned:

All of these statutory provisions convince us that an ATV is not a private passenger automobile. Further, given that an ATV cannot be driven on public roads, except to cross a road in order to reach an ATV site, and given that children can drive ATVs, we conclude that no reasonable policyholder would believe that the GEICO policy reference to “private passenger auto” coverage would extend to an ATV.Lastly, even if we had doubts about our conclusion, we are bound by the Supreme Court’s holding in Wilno. Given Judge Allcorn’s reasoning, which the Court adopted, we can find no principled basis on which to distinguish the case.

2018 WL 5273995 at *4. The court specifically rejected the argument that the phrase “private passenger auto” was ambiguous. The court also rejected the argument that an insured would reasonably have believed that an ATV qualifies as a “private passenger auto.”

This is a case where the trial court overreached in an attempt to create coverage where none existed. Clearly, there was no intent on the part on the insureds to obtain coverage under their automobile liability policy for injuries caused by their fourteen-year-old daughter while riding someone else’s ATV. Yet, the trial court granted summary judgment in favor of the insureds. Fortunately, rather than simply hold that the language of the policy was ambiguous, or mechanically apply the reasonable expectations doctrine, the Appellate Division performed a detailed analysis of the policy language, the relevant statutes, and prior New Jersey Supreme Court precedent to arrive at its conclusion that there was no coverage.

An insurer typically has two distinct, albeit related, obligations under a third-party policy: the duty to defend the insured in connection with potentially covered claims asserted against the insured and the duty to pay any judgments against the insured in connection with covered claims. It is well established that an insurer can be estopped from denying coverage if it undertakes the defense of its insured and fails to timely inform its insured that coverage may not exist and/or may be limited. In other words, failure to inform the insured of a coverage limitation may result in waiver of that limitation. As summarized by the New Jersey Supreme Court:

Under certain circumstances an insurance carrier may be estopped from asserting the inapplicability of insurance to a particular claim against its insured despite a clear contractual provision excluding the claim from the coverage of the policy. The strongest and most frequent situation giving rise to such an estoppel is one wherein a carrier undertakes to defend a lawsuit based upon a claim against its insured. If it does so with knowledge of facts that are relevant to a policy defense or to a basis for noncoverage of the claim, without a valid reservation of rights to deny coverage at a later time, it is estopped from later denying coverage.

The issue of whether an insurer should be estopped from denying coverage after agreeing to defend its insured arises fairly frequently. The most recent case to address this issue is Drive New Jersey Insurance Company v. D’Alessio, 2018 WL 3339796 (N.J. Super. Ct. App. Div. July 9, 2018). In that case, the insurer, Drive New Jersey Insurance Company, agreed to defend its insured in a wrongful death action without issuing a reservation of rights (ROR) letter. Although the Drive policy provided an overall coverage limit of $500,000, it reduced coverage to $15,000 for the use of a vehicle for business purposes. After agreeing to defend its insured without first raising the reduced limit, Drive later sought to limit its liability to $15,000.

The underlying action arose out of a fatal car accident in which Louis A. D’Alessio, Jr., Drive’s insured, struck and killed a pedestrian. At the time, D’Alessio was using his own car to deliver bagels for Bagel Express, his employer. Bagel Express had its own insurance with Sentinel Insurance Company. After undertaking the defense of its insured in the underlying action, Drive commenced a separate declaratory judgment action against D’Alessio, Bagel Express, Sentinel, and the decedent. Drive did not seek to stay the underlying wrongful death action and continued to defend the insured in that action.

After the close of discovery in the declaratory judgment action, Sentinel moved for summary judgment, seeking a ruling that Drive was precluded from avoiding liability for the full amount of the policy limit. During discovery Drive failed to produce a ROR letter, and at oral argument of the summary judgment motion its counsel did not take the position that a ROR letter had been sent. Rather, Drive merely asserted the rather novel argument that such a letter was not necessary because it was only reducing coverage and not denying it.

After losing on summary judgment, Drive filed a motion for reconsideration. This time, Drive produced, for the first time, an unsigned letter that it purportedly sent to the insured’s former counsel. That letter made specific reference to the $15,000 coverage limit, although it did not specifically state that Drive was reserving its rights. The former counsel had been retained to represent the insured only in connection with an examination under oath requested by Drive and did not represent the insured in either litigation. Drive claimed it mistakenly failed to provide the letter to its own counsel, which is why it had not been produced earlier. Drive also produced for the first time a letter to the insured in which it stated that while the insured had $500,000 in coverage, it was possible that a judgment in excess of that amount could be entered against the insured and, for that reason, he may want to retain a personal attorney. It is not clear why Drive believed that that letter supported its position.

The judge scheduled a testimonial hearing to deal with the factual issue raised by the motion for reconsideration. On the date of the hearing, Drive was not prepared to proceed for a number of reasons. The judge subsequently denied the motion. The court noted that there was no evidence that the two letters could not have been located earlier through diligent effort. Without going into any detail, the court further noted that even if Drive could prove that the insured’s former attorney had received the newly discovered letter at a time when he was still representing the insured, it did not qualify as a ROR letter.

The Appellate Division affirmed. The court began its analysis by agreeing with the motion judge that “Drive could not undertake the defense of its insured, without giving the insured advance notice that Drive intended to deny most of the coverage the policy provided and that it would defend under a reservation of that right.” Id. at *4. Citing Griggs, the court went on to note that “[e]ven if a formal ROR letter were not required, an insurer must timely invoke a policy exclusion.” Id. Finding that “[t]he undisputed summary judgment evidence established that Drive neither timely invoked the exclusion nor served its insured with a reservation of rights letter,” the court upheld the lower court’s decision. The court also rejected Drive’s argument that Sentinel had no standing to raise the estoppel issue, pointing out that Drive chose to sue Sentinel.

The court’s decision is not surprising and the result is not that uncommon. It is critical for an insurer to closely examine its policy prior to assuming the defense of its insured, or hire coverage counsel to do so on its behalf, and raise any potential defense and/or limitations as soon as possible. Otherwise, it runs the risk of being estopped from raising those defenses and/or limitations. That is what happened to Drive, and it ultimately cost Drive $485,000.

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When will it end is a refrain that must be on many liability insurers’ minds when it comes to liability under commercial general liability policies issued decades ago. Many such policies contain anti-assignment clauses, the purpose of which is to allow an insurer to limit its liability to successor companies and better gauge its potential future liability. In Givaudan Fragrances Corp. v. Aetna Cas. & Sur. Co., 442 N.J. 28 (2015), however, the New Jersey Supreme Court held that an anti-assignment clause in an insurance policy is no bar to the post-loss assignment of an insurance claim.

Givaudan dealt with the issue of the assignment of claims under decades-old insurance policies. The Court held that “once an insured loss has occurred, an anti-assignment clause in an occurrence policy may not provide a basis for an insurer’s declination of coverage based on the insured’s assignment of the right to invoke policy coverage for that loss.” The reasoning behind this rule is that liability under an occurrence-based policy attaches once the occurrence takes place even though no claim has been asserted. Thus, the insurer becomes obligated to the insured on the date of the loss and that obligation may freely be assigned.

Recently, the Appellate Division reached a similar conclusion in Cooper, LLC v. Columbia Cas. Co., 2018 WL 1770260 (April 13, 2018). The real issue in Cooper, however, was not whether the claims could be assigned, but rather whether they had, in fact, been assigned. That case involved coverage for environmental damage under multiple policies that were in effect during the period from 1971 through 1980. The policies had been issued to McGraw-Edison Company. The plaintiff, Cooper, was named as a potentially responsible party at a hazardous waste site that had been owned by McGraw-Edison. As the successor in interest to McGraw-Edison, Cooper sought coverage under the McGraw-Edison policies.

The Corporate Restructuring

In May 1985, McGraw-Edison, which the court refers to as Old McGraw, was acquired by Cooper. A series of complex transactions concerning the business operations, assets, and liabilities of Old McGraw then took place.

First, Old McGraw’s business operations were divided among ten “Mirror Image Companies.” The Mirror Image Companies owned an acquisition company named CI Acquisition. CI Acquisition, in turn, owned another acquisition company named CM Mergerco. Neither acquisition company owned any operating assets.

On May 30, 1986, Old McGraw and CI Acquisition merged. As part of the merger, CI Acquisition assumed all of Old McGraw’s obligations and liabilities. The merger agreement stated that “all the property, rights … and other assets of [every] kind and description” were being transferred from Old McGraw to CI Acquisition. Although the agreement makes no refence to insurance policies or claims, the appellant-insurers did not dispute that Old McGraw’s rights under its insurance policies were transferred to CI Acquisitions.

Five minutes after the merger took place, five of the Mirror Image Companies were merged together to form McGraw-Edison Company, which the court refers to as New McGraw. CI Acquisition then distributed all its assets (which just minutes ago had been owned by Old McGraw) to New McGraw and the remaining Mirror Image Companies. The transfer of assets took place by way of bills of sale. In the New McGraw bill of sale, CI Acquisitions transferred “all of [its] assets, rights and projects of every kind and nature … used in or related to all operations other than its Power Systems, Controls, Clark and Service operations.” Once again, the agreement made no reference to insurance policies or claims. It did indicate, however, that New McGraw assumed all of CI Acquisition’s liabilities. After the transfer of assets, CI Acquisition, which only held the assets for a matter of minutes, was liquidated.

Over the next eighteen years, Cooper owned New McGraw and the remaining Mirror Image Companies. In November 2004, Cooper merged New McGraw into itself.

Transfer of the Insurance Rights

There was no dispute that if the insurance rights had been transferred to New McGraw as part of the 1986 bill of sale, they would have been transferred to Cooper as part of the 2004 merger. Thus, the bill of sale between CI Acquisitions and New McGraw was the critical document. The bills of sale purportedly transferred various rights to New McGraw and the surviving Mirror Image Companies, but the specific rights that were transferred to each company were never identified.

As noted by the court, “in interpreting the 1986 Bill of Sale between CI Acquisition and New McGraw, the analysis boils down to whether the language alone clearly provided for the transfer of the insurance rights, and, if so, which entity received those rights.” Id. at *4. The court found the language in the bill of sale (“all … assets, rights and properties of every kind and nature”) was sufficient to transfer any insurance rights. The dispositive question, however, was whether those rights were transferred to New McGraw or one of the Mirror Image Companies.

Because the bill of sale was not clear with respect to that issue, the court relied on the deposition testimony of several witnesses. One witness was the general counsel of Cooper, who previously worked in the law department. She testified that the bill of sale was intended to transfer all of the assets and liabilities of Old McGraw, which had been acquired by CI Acquisitions, to New McGraw. She further testified that the Mirror Image Companies did not receive any new rights through the asset sales and that they had no interest in the insurance rights. However, she did not participate in the drafting of the bill of sale, although she had general knowledge concerning Cooper’s business operations.

The other two witnesses worked in Cooper’s risk management and insurance department. Although neither individual was involved in the 1986 asset sale, they claimed to have knowledge of Cooper’s business operations prior to and after the sale. In addition, and more significantly, they had knowledge concerning Cooper’s dealings with Old McGraw’s insurers. Significantly, they testified that Cooper had made retroactive premium payments to the insurers and had submitted claims under the policies, which were, in fact, paid by the insurers. There also was documentary evidence supporting this testimony.

While general knowledge about Cooper’s business practices arguably has questionable relevance on the issue of the parties’ intent, the fact that the insurers treated Cooper as having rights under the policies directly supported the argument that Old McGraw’s rights under the policies had been transferred to Cooper.

Notably, even though Cooper’s general counsel had no personal knowledge concerning the intent of the drafters of the bills of sale, the court credited her testimony because she was designated as the corporate designee. According to the court:

Under N.J.R.E. 602, witnesses may not testify to a matter unless they have personal knowledge of it. One exception to that requirement is set forth in Rule 4:14-2, which provides that a party may depose a corporation, and the corporation must designate one or more persons to testify on its behalf. These corporate witnesses may then testify “as to matters known or reasonably available to the organization,” even if these matters are outside the witness’ personal knowledge.

Id. at *5. While the court’s recitation of the rules is correct, the corporate designee must still have a basis for his or her testimony. That is something that seemed to be lacking in this case in that no reference was made to the source of the information about which the witness testified.

Conclusion

In light of the Givaudan decision, the Appellate Division’s ruling in Cooper that the insurance rights could be transferred is not surprising. Because liability for environmental contamination attached at the time the contamination occurred, which in this case was in the 1970s and early 1980s, there was no question that any potential right to assert a claim arose long before the transfer of Old McGraw’s rights under the policies.

What the case shows is how difficult it is to predict when an insurer’s potential liability will end. It does not appear that insurance coverage was on the mind of Cooper when it undertook the series of transactions that ultimately resulted in it being named as a potentially responsible party at a hazardous waste site 23 years later. Unfortunately for the insurers, their acceptance of premiums and payment of claims under policies issued decades earlier undercut their argument that Cooper had no rights under the policies.

In a recent case, the United States District Court for the District of New Jersey held that an insured had no duty to defend an insured accused of falsely advertising the origin of its product. Albion Engineering Company, a New Jersey company, was sued by a competitor for false advertising because it claimed that its products were made in America when, in fact, they were made in Taiwan. Albion then sought coverage from its insurer, Hartford Fire Insurance Company. The Hartford policy provided coverage for, among other things, personal and advertising injury. In Albion Engineering Co. v. Hartford Fire Ins. Co., 2018 WL 1469046 (D.N.J. March 26, 2018), Judge Noel L. Hillman held that there was no coverage for the claims.

Many liability policies provide coverage in connection with “advertising injury.” In determining the extent to which such coverage exists, it is necessary to closely examine the policy language because the wording of such coverage provisions varies widely. In addition, over the years insurers have modified their policy wording to address issues raised by the courts. Thus, decisions issued just a few years ago may have little or no relevance.

The policy at issue in Albion defined “personal and advertising liability” to include injury arising out of the “[o]ral, written or electronic publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services . . . .” Thus, coverage was limited to two types of claims: defamation and disparagement. As summarized by the court:

The issue before this Court is whether the [the underlying action] asserts a claim for “injury . . . arising out of . . . publication of material that slanders or libels a person or organization or disparages a[n] . . . organization’s goods, products or services.”

Id. at *7. In other words, the issue addressed by the court was whether falsely stating that one’s products are manufactured in the United States is defamatory toward, or disparages products made by, a competitor.

Both Albion and its competitor, Newborn Brothers Co., Inc., a Maryland-based company, manufacture caulking guns and accessories in Taiwan. Albion claimed, however, that its products were manufactured in the United States. Newborn sued Albion in federal court in New Jersey, asserting claims for false advertising and product marking under the Lanham Act and tortious unfair competition. Newborn’s allegations against Albion were summarized by the court as follows:

Albion’s misrepresentations and material omissions concerning the geographic origin of the subject merchandise include that these products are “Made in America” and Albion’s failure to disclose that these products are “Made in Taiwan” are unfair competition that has injured Newborn by causing distributors to substitute the subject merchandise for Newborn’s competitive goods.

Id.

Albion commenced a separate action against Hartford in federal court in New Jersey after Hartford refused to defend it in the underlying action. Both parties subsequently moved for summary judgment. Although the duty to defend is broader than the duty to indemnify, Hartford took the position that it had no duty to defend Albion in the underlying action because the allegations against Albion did not give rise to potentially covered claims.

As noted by the court, to state a valid claim for product disparagement under New Jersey law, it must be alleged that the defendant made “false allegations concerning plaintiff’s property or product.” Id. at *7 (quoting Gillon v. Bernstein, 218 F. Supp. 3d 285, 294 (D.N.J. 2016)). There was no allegation in the underlying action that Albion made any statements whatsoever about Newborn’s products or that it compared their products in any way. Nor did Albion claim that only its products were manufactured in the United States. Rather, Albion simply advertised, albeit falsely, that its own products were made in the United States. Because Newborn did not allege that Albion disparaged Newborn’s products, the court held that there was no coverage for the claims. According to the court:

Under New Jersey law, the allegedly disparaging publication must concern the plaintiff in the Newborn Suit or its products. The allegation that Plaintiff falsely represented that its products were made in the United States when they were in fact made in Taiwan contains no statement that references Newborn, explicitly or implicitly.

Id. at *9.

The court further held that Newborn, the underlying plaintiff, failed to state a defamation claim that would trigger a duty to defend. “As with disparagement, an essential element of defamation is that the statement be concerning the plaintiff.” Id. at *13. Because Albion made no reference to Newborn’s products, any defamation claim also would fail.

The court did not address the validity of the Lanham Act claims, presumably because there was no allegation that they would trigger a duty to defend.

Interestingly, Albion lied about its products, but it did not lie enough to trigger insurance coverage. Had Albion stated that it was the only manufacturer whose products were made in the United States, that its products were somehow better than its competitors’ products because they were made in the United States, or pointed out that Newborn’s products were manufactured overseas, coverage may have been triggered. Of course, had it done that, Albion also would have opened itself up to potentially greater liability.

As a result of the court’s decision, Albion is left to cover its own costs in the two litigations and any potential judgment in the Newborn action. In addition, because Albion and Newborn are not the only manufacturers of such productions, Albion may face additional lawsuits. It would be interesting to see if any “benefit” Albion received from falsely advertising its products outweighed the cost it must now pay. Regardless, Albion has changed its advertising since the commencement of the underlying action by Newborn. Albion now states on its website that its products are “designed” in the United States and that it has “substantial USA quality control and manufacturing capabilities.”

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Liability insurance policies do not provide coverage for injuries resulting from conduct that is “particularly reprehensible.” As a general rule, coverage is barred where the insured had an intent to injure. In most circumstances, courts apply a subjective standard to determine whether an insured had an intent to injure. “Even when the actions in question seem foolhardy and reckless, the courts have mandated an inquiry into the actor’s subjective intent to cause injury.” Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 1841 (1992). However, an intent to injure will be presumed where the conduct at issue is “particularly reprehensible.” As noted by the New Jersey Supreme Court in Voorhees:

When the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor’s subjective intent to injure. That objective approach focuses on the likelihood that an injury will result from an actor’s behavior rather than on the wrongdoer’s subjective state of mind.

Thus, for instance, an intent to injure is presumed in situations involving the sexual molestation of children. The Appellate Division has also held that the non-consensual exposure of an individual to the HIV virus during sexual relations is “particularly reprehensible,” and, therefore, an intent to injure will be presumed.

Recently, in D.G. v. B.E.A., 2018 WL 1527558 (N.J. Super. Ct. App. Div. March 29, 2018), the Appellate Division held that acts of domestic violence are particularly reprehensible and, therefore, there is no coverage for injuries resulting from such acts. In that case, the plaintiff and the defendant, who had been dating for a number of years, went to Atlantic City for the weekend. After a day and evening of heavy drinking, the defendant returned to the hotel room and viciously attacked his girlfriend, the plaintiff. He blamed the attack on “extreme voluntary intoxication” and claimed that he was so intoxicated that he could not have formed an intent to injure the plaintiff. Id. at *2. There was no prior history of domestic violence between the parties.

The defendant’s insurer denied coverage for the incident, claiming “that defendant’s violent assault of plaintiff was not an accident under the policy, but rather, a particularly reprehensible act of domestic violence, where intent to injure is presumed.” Id. at *2. The court agreed, as did the trial court. The court held that the given the nature of the incident in question, the insurer had no duty to defend or indemnify the defendant, even though the plaintiff asserted claims based on negligent conduct, in addition to intentional and reckless conduct.

The Appellate Division also rejected the defendant’s argument that the parties’s non-violent history was relevant. According to the court, a single act of domestic violence is sufficient to preclude coverage. Citing an earlier decision, the court further noted “that spousal abuse in any form is ‘so inherently injurious, that it can never be an accident’ . . . .” Id. at * 5 (quoting Merrimack Mut. Fire Ins. Co. v. Coppola, 299 N.J. Super. 219, 230 App. Div. 1997)). The court further rejected the argument that intoxication was a defense to the argument that the defendant intended to injure the plaintiff.

Despite the court’s statement that domestic violence is so inherently injurious that it can never be an accident, the court noted:

Although there was only one incident of domestic violence here, it was sufficiently egregious to warrant the denial of coverage. Defendant brutally assaulted plaintiff, causing her significant and permanent injuries. Defendant’s conduct was so egregious as to be “particularly reprehensible,” warranting a presumption of intent to injure plaintiff and denial of coverage under the policy exclusion.

Id. at *6. Thus, the court appeared to leave the door open to a finding in a future case that an act of domestic violence may not rise to the level of being “particularly reprehensible.” In other words, the court appears to be suggesting that not all acts of domestic violence are so egregious as to be considered particularly reprehensible as a matter of law.

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Insurance policies commonly contain an exclusion for losses caused by “earth movement” or “subsidence.” Such exclusions typically exclude coverage for losses caused by earthquakes, landslides, mudflows, and earth sinking or shifting. Absent language to the contrary, “[e]arth movement exclusions are often interpreted to refer to only natural, non-human events.” See, e.g., El-Ad Group v. Northbrook Property & Casualty Insurance Company, 2006 WL 8406838 (D.N.J. March 15, 2006); see also Ariston Airline & Catering Supply Co. Inc. v. Forbes, 211 N.J. Super. 472 (Law Div. 1986) (“the words ‘earth movement’ must be interpreted as referring to a natural phenomenon akin to earthquakes, landslides, mud flows, earth sinkings, and earth risings or shiftings. An earthquake, for example, is not the result of human activity.”). However, some exclusions specifically provide that they also apply to non-natural, man-made events.

One such exclusion was addressed by the New Jersey Appellate Division several years ago in Essex Insurance Company v. New Jersey Pan-African Chamber of Commerce & Industry, Inc., 2013 WL 515934 (N.J. Super Ct. App. Div. August 27, 2013). Essex involved both property damage and personal injury claims arising out of the collapse of a building. Construction activity on a neighboring property allegedly caused the collapse.

Essex Insurance Company, the general liability insurer for the property where the construction work was being performed, commenced a declaratory judgement action seeking a ruling that it had no obligation to defend the property owner, among others, based on an earth movement exclusion contained in its policy. The exclusion provided that there was no coverage for “‘movement of land or earth’ regardless whether emanating from, aggravated by, or attributable to any operations performed by or on behalf of any insured . . . .” Id. at *2. Based on that language, the court held that the exclusion applied to man-made events and, therefore, Essex was not required to provide coverage to its insured. The court reasoned as follows:

We reject defendants’ contention, based upon the cases they cite, that the exclusions at issue here apply only to natural phenomena. All of the cases cited by defendants are distinguishable because they involved exclusions that did not explicitly, as is the case here, define earth movement as including non-natural activities. Here, the definition specifically includes earth movement “emanating from, aggravated by, or attributable to any operations performed by or on behalf of any insured[.]”

Id. at *4. The court further observed:

earth movement exclusions are not universally interpreted to encompass only naturally occurring earth movement. Rather, such exclusions are interpreted on a case-by-case basis in accordance with the specific exclusion’s language.

Id. at *5.

Essex later added the insurer for the general contractor (Navigators Specialty Insurance Company) as a party to the action, seeking a ruling that Navigators was required to defend the property owner. Navigators, in turn, commenced a third-party action against the insurer for the subcontractor (Scottsdale Insurance Company), seeking a ruling that Scottsdale was obligated to defend the general contractor. Prior to the collapse the subcontractor had been performing pile driving activities at the construction site.

The case recently made its way to the Appellate Division a second time. SeeEssex Insurance Company v. New Jersey Pan-African Chamber of Commerce & Industry, Inc., 2017 WL 4051726 (N.J. Super Ct. App. Div. Sept. 14, 2017). The court was asked once again to decide whether a subsidence exclusion precluded coverage for the loss. The exclusion at issue, which was contained in Scottsdale’s policy, provided:

This policy does not apply to “bodily injury” or “property damage” caused by, resulting from, attributable or contributed to, or aggravated by the subsidence of land as a result of landslide, mudflow, earth sinking or shifting, resulting from operations of the named insured or any subcontractor of the named insured.

Id. at *2. Like the exclusion in the Essex policy, the last clause of the Scottsdale exclusion made it clear that it also applied to man-made events. Thus, the court was not required to address that issue again. Rather, the question before the court was whether the collapse of the neighboring building was caused by “subsidence of land” within the meaning of the above-quoted exclusion.

Navigators and Scottsdale both cross-moved for summary judgment in the court below. The trial court granted partial summary judgment in favors of Navigators, finding that Scottsdale had a duty to defend the general contractor. The court rejected Scottsdale’s argument that the subsidence exclusion barred coverage. The trial court observed that “the complaints in the underlying actions alleged the subcontractor’s conduct caused vibrations and erosions to the surrounding land.” Id. at *2. According to the court, in order for the exclusion to apply, Scottsdale was required to prove “that the subsidence was caused by an earth movement, which includes earth rising, sinking, shifting, or subsiding, landslide, or mudflow.” Id. The court concluded:

Reasonable minds can disagree as to whether vibrations mean earth shifting or sinking. The policy does not provide for a definition of earth shifting. Additionally, the policy does not negate coverage for all “earth movements,” which would have encompassed vibrations.

Id. Consequently, the court found the exclusion to be ambiguous and construed it against Scottsdale.

On appeal, the Appellate Division reversed the granting of partial summary judgment in favor of Navigators. The court began its analysis by noting that the duty to defend is determined by comparing the allegations in the complaint with the policy language to determine whether the complaint states a potentially covered claim. Id. at 2. The court next determined that the allegations in the property damage and personal injury complaints did not meet that standard:

These complaints allege the pile-driving activity caused vibrations which in turn caused the soil beneath the Pan–African building’s foundations to “erode and subside down into the excavation”; and caused “erosion to the surrounding land.” The allegations fall within the clear import and intent of the Scottsdale policy’s exclusion for subsidence of land caused by earth sinking or shifting, resulting from operations of the pile subcontractor.

Id. at 4.

The court went on to note:

Although we do not necessarily disagree with the trial court’s observation that “[r]easonable minds can disagree as to whether vibrations mean earth shifting or sinking,” that statement is incomplete. The property damage and personal injury complaints did not merely allege vibrating sand or soil beneath the Pan–African building’s foundation caused the collapse. Rather, they allege the vibrations generated by construction activity caused the sand or soil to “erode and subside down into the excavation.” The earth’s erosion and subsiding down into the excavation constituted earth “sinking or shifting” and thus fell within the policy’s exclusion.

Id. Thus, Navigators, whose policy apparently did not contain such an exclusion, was left holding the bag.

As noted, for many years the general rule was that earth movement and subsidence exclusions were interpreted to refer only to natural, non-human events. The Appellate Division’s 2013 decision made it clear that despite the general rule, such exclusions will not be limited to losses caused by natural phenomena as long as they explicitly refer to non-natural, man-made activities. Its most recent decision shows the importance of carefully pleading a cause of action. The Appellate Division agreed with the trial court that “[r]easonable minds can disagree as to whether vibrations mean earth shifting or sinking.” In this particular case, however, the plaintiffs specifically plead that the vibrations caused the soil “to erode and subside down into the excavation.” Use of those particular words led to a finding that Scottsdale had no duty to defend the general contractor. Had the allegations been phrased differently, the court may have ruled otherwise. Nonetheless, even if a duty to defend had been found, whether there would have been a duty to indemnify is an entirely different issue. Under New Jersey law, the duty to defend is much broader than the duty to indemnify.

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An updated and expanded version of New Jersey Insurance Coverage Litigation – A Practitioner’s Guide, the book I co-authored, is now available. It has been over two years since the first edition of this book was published. In this second edition, my co-author and I have added discussions concerning many of the over seventy insurance cases that were decided by New Jersey state and federal courts since the first edition was published. In addition, a new chapter was added that discusses the potential liability of insurance agents and brokers.

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Leases of real property often require the tenant to obtain liability insurance covering the premises and to name the landlord as an additional insured under the policy. The extent to which the landlord is entitled to coverage depends, at least in the first instance, on the particular language in the tenant’s policy. A typical additional insured endorsement provides coverage to a landlord for liability “arising out of” the ownership, use, or maintenance of the premises by the tenant.

The phrase “arising out of” has been given expansive meaning by New Jersey courts. When a tenant’s policy contains such language, a landlord will be entitled to coverage as an additional insured if the conduct at issue “originates from,” “grows out of,” or has a “substantial nexus to” the tenant’s acts or omissions. See Flomerfelt v. Cardiello, 202 N.J. 432, 451-54 (2010). Recently, however, the New Jersey Appellate Division went a step further and held that a landlord was entitled to coverage as an additional insured even though a third-party’s injuries had no real connection to the tenant’s use of the leased premises.

In that case, Killeen v. Jenson & Mitchell, Inc., 2017 WL 1632645 (App. Div. May 2, 2017), the court held that a landlord was entitled to coverage as an additional insured in connection with injuries sustained by a firefighter when he fell through a glass panel on the roof of the premises leased by the tenant. The firefighter was responding to a fire at a neighboring property that was not leased by the tenant-insured. The firefighter climbed on the roof of the leased property to access the neighboring property. There is no indication that the tenant caused or in any way contributed to the fire.

The lease required the tenant to obtain liability insurance and name the landlord as an additional insured under the policy. The lease agreement also contained mutual indemnification clauses, requiring the landlord and the tenant to indemnify each other for liability arising out of their respective negligence. The lease specifically provided, however, that the landlord was responsible for repairs to, and maintenance of, the roof.

The insurance policy obtained by the insured provided:

WHO IS AN INSURED . . . is amended to include as an insured any person or organization . . . with whom you have agreed in a written contract, executed prior to loss, to name as an additional insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of any premises leased to [the tenant] . . . .

Id. at *2.

The firefighter sued both the landlord and tenant alleging negligent maintenance of the property. The landlord filed a third-party complaint against the tenant’s insurer, seeking coverage under the policy. Both the landlord and the insurer moved for summary judgment. The trial court ruled in favor of the insurer, noting that the lease required the landlord to maintain the roof. The Appellate Division reversed, finding that the roof was part of the leased premises.

As the court correctly noted, as a general rule, when an insurance policy is clear and unambiguous, extrinsic evidence, such as a lease agreement, should not be considered. Id. at *4 (“The extent of coverage in an unambiguous insurance policy is determined by the relevant policy terms, not the terms of an underlying contract, in this case the lease, that mandates insurance coverage”). In Killeen, however, there was an issue as to whether the tenant was responsible for the “maintenance” of the roof. That issue could not be resolved without reference to the lease. In that regard, this case was similar to Pennsville Shopping Center Corporation v. American Motorists Insurance Company, 315 N.J. Super. 519 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999), a case in which the court did consider the terms of the lease.

The Killeen court attempted to distinguish the Pennsville case on the basis that the policy in Pennsville was “unclear.” However, the Pennsville court never determined that the policy language was unclear. Indeed, the policy language is not even quoted in the opinion. More important, the Pennsville court held that it was appropriate to consider extrinsic evidence regardless of whether the policy language was clear or unclear:

Manifestly, irrespective of the language of provisions of tenant’s insurance policy covering landlord as an additional insured, tenant could not be seen to be providing any indemnification to landlord for damages sustained because of a condition for which tenant bore no responsibility at all and which, to the contrary, the parties had expressly agreed in their lease was the sole responsibility of landlord. . . . Absent an express and unambiguous contractual undertaking to do so, a tenant cannot logically be seen to be providing insurance to a landlord in respect of a liability for which the landlord has assumed sole responsibility and has agreed to indemnify the tenant. The indemnification rights of plaintiff carrier can rise no higher than the rights of its insured.

315 N.J. Super. at 523. It is hard to reconcile this language with the court’s holding in Killeen.

As to whether the tenant “used” the roof, there is no question that a roof was necessary for the tenant to conduct its operations. However, the tenant’s “use” of the roof in no way caused or contributed to the firefighter’s injuries. In other words, the firefighter’s injuries did not “arise out of” the use of the roof by the tenant. Nonetheless, according to the court:

Here, the roof was integral to the leased premises and the accident was “a reasonable incident or consequence of the use of the leased premises.”

Id. at *5. Had the firefighter been injured while fighting a fire that started on the leased premises, or while physically within the space occupied by the tenant, the issue may have been different. Given the facts at issue, however, it cannot be said that the firefighter’s injuries “originated from,” “grew out of,” or had a “substantial nexus to” the tenant’s acts or omissions.

In reaching its decision, the court relied on three other decisions in which a customer of a tenant was injured after leaving the tenant’s business premises. The court noted that in the first case, “although the accident did not occur within the leased premises, it occurred from the use of the premises leased by the tenant because there was a relationship between the occurrence and the use of the premises leased by the tenant.” Id. at *5 (discussing Franklin Mut. Ins. Co. v. Security Indem. Ins. Co., 275 N.J. Super. 335 (App. Div.), certif. denied, 139 N.J. 185 (1994)). In the second case, coverage was found to exist because “the landlord [could] trace the risk creating its liability directly to the tenant’s business presence.” Id. (quoting Harrah’s Atlantic City, Inc. v. Harleysville Ins. Co., 288 N.J. Super. 152, 158-59 (App. Div. 1996)). In this third case, the “accident . . . occurred off the tenant’s premises, but close to the premises, and involved a prospective customer approaching the tenant’s store.” Id. at *6 (discussing Liberty Village Assoc. v. West American Ins. Co., 308 N.J. Super. 393 (App. Div. 1998)).

In Killeen there was no relationship between the occurrence and the use of the premises leased by the tenant, the risk creating the landlord’s liability (i.e., the failure to maintain the roof) could not be traced to the tenant’s business presence, and the injured party was not a prospective customer. Thus, the cases relied on by the court are distinguishable.

The Killeen court arguably stretched the “arising out of” language beyond its intended meaning. There was no dispute that the tenant was not responsible for the maintenance of the roof and the firefighter’s presence on the roof had no real nexus to the tenant’s use of the premises. Based on the court’s holding, it is hard to envision a case in which a landlord will not be found to be an additional insured under such language.

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For over 100 years, it has been well established under New Jersey law that an insurance broker owes a duty to the insured, its client, to act in good faith and with reasonable skill in performing its services. That duty, however, is not unlimited. For instance, absent a “special relationship,” an insurance broker has no duty to recommend that its client purchase higher limits of coverage or even advise its client that such limits are available. See Wang v. Allstate Ins. Co., 125 N.J. 2, 11-12 (1991). That principle recently was reaffirmed by the New Jersey Appellate Division in C.S. Osborne & Co. v. Charter Oak Fire Insurance Co., 2017 WL 1548796 (App. Div. May 1, 2017).

The insured in that case, a family-owned business that manufactured tools used for leatherwork and upholstery, among other things, had manufacturing facilities in Harrison, New Jersey, and St. Louis, Missouri. The insured had a twelve-year relationship with Bollinger, Inc., its insurance broker. Over that time, the broker would unilaterally review the insured’s coverage and make recommendations. For instance, the broker had made suggestions about purchasing coverage for terrorism, employment practices, earthquake, product recall, pollution liability, directors and officers liability, among other things.

The insured’s property insurance policy, which was in effect on the date that Superstorm Sandy hit New Jersey, contained a “water” exclusion, although it also provided $1 million in flood coverage. In connection with the renewal of the prior year’s policy, the broker informed the insured:

Higher limits or sub-limits may be available so please advise us if you are interested in higher limits options so that we may secure quotations for your consideration.

However, the broker did not specifically recommend that higher limits should be purchased; it left that decision to the insured.

As a result of Superstorm Sandy, the insured’s New Jersey facility sustained significant flood damage in excess of the $1 million flood limit. The insured subsequently sued its broker, arguing that the broker should have recommended a higher flood limit. The insured retained an expert who “opined that because elevations were low with a river nearby, a discussion about flooding should have occurred” between the insured and the broker. Id. at *2.

The trial judge grated summary judgment in favor of the broker, and that decision was affirmed on appeal. Despite the twelve-year relationship between the parties, the court found that there was no “special relationship” that would have given rise to a duty to recommend higher coverage limits. In order for a special relationship to be found, an insured must establish “something more” than a traditional broker-client relationship. See, e.g., Triarsi v. BSC Group Services, LLC, 422 N.J. Super. 104, 116-17 (App. Div. 2011). Reasonable reliance by the insured on the broker’s recommendations may give rise to such a relationship. In Osborne, however, the court found that “Bollinger never told plaintiff anything that would reasonably cause plaintiff to rely on his quotes as recommendations for the proper amount of insurance coverage.” Id. at *6. The court went on to note:

Bollinger’s insurance proposal also clearly informed plaintiff of its ability to offer more insurance coverage. Bollinger did not have any more information than plaintiff, and nothing in the record shows Bollinger acted to cause plaintiff to rely on it to recommend the proper amount of insurance coverage.

Id. at *6.

While insureds may be surprised to learn that their broker has no duty to recommend appropriate levels of insurance coverage, the Osborne decision, in and of itself, is not surprising. As noted, over twenty-five years ago the New Jersey Supreme Court held that a broker does not owe such a duty to its client. One possible way for an insured to get around this is simply for the insured to inform the broker that it is seeking the “best available coverage. SeeHarrington v. Hartan Brokerage, Inc., 2014 WL 2957756, *8 (N.J. Super. Ct. App. Div. July 2, 2014) (court held that “by asking for the ‘best available’ insurance, the insured put the agent on notice that he was relying on the agent’s expertise to obtain the desired coverage”).

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Property insurance policies, like other insurance policies, contain an overall limit of liability, which is the maximum amount that the insurance company will pay for any given loss. In addition to an overall limit, policies may also contain “sublimits” of liability that apply to certain types of perils or damage. A sublimit is less than the overall policy limit. It is not uncommon to see sublimits pertaining to catastrophic losses, such as losses caused by hurricanes, earthquakes, and floods. In addition, sublimits typically apply to business interruption losses and the cost to remove the debris resulting from a covered loss.

An issue that often arises in connection with large losses is whether an insured can “stack” multiple sublimits under a policy to increase its overall recovery. In other words, can an insured recover under multiple sublimits as long as the total of the potentially applicable sublimits does not exceed the overall policy limit? Resolution of that issue obviously turns on the particular policy language at issue. However, courts do not always interpret policy language in the same way, which can give rise to inconsistent decisions.

In Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company, A-85-15, 077617 (N.J. May 25, 2017), the New Jersey Supreme Court dealt with a stacking issue involving flood damage caused by Superstorm Sandy. The insureds in that case were the owners and managers of an apartment complex located in Long Branch, New Jersey, which sustained significant flood damage.

The policy contained a $1 million sublimit for “all losses” caused by flood. However, the policy also contained a separate, “additional” $500,000 sublimit for debris removal. The insureds sought to recover $207,961.28 in debris removal expenses in addition to the $1 million in flood coverage. The insurer denied any claim in excess of the $1 million flood sublimit.

The main policy form contained an exclusion for flood damage. Flood coverage was added to the policy, however, by way of endorsement. The endorsement provided that “[t]he most [Travelers] will pay for the total of all loss or damage caused by Flood in any one policy year is the single highest Annual Aggregate Limit of Insurance specified for Flood shown in the Supplemental Coverage Declarations,” which was $1 million. The endorsement further provided that the limit applied to “all losses covered under this policy … [o]ccurring at Insured Premises resulting from Flood to buildings, structures or property in the open within Flood Zone A … or property in or on buildings or structures located within such Flood Zones ….” With respect to the potential application of multiple sublimits, the endorsement provided:

If more than one Annual Aggregate Limit of Insurance applies to loss or damage under this endorsement in any one occurrence, each limit will be applied separately, but the most [Travelers] will pay under this endorsement for all loss or damage in that occurrence is the single highest Annual Aggregate Limit of Insurance applicable to that occurrence.

The “single highest Annual Aggregate Limit of Insurance” that applied to the loss at issue was the $1 million flood sublimit.

The trial court held that the policy unambiguously limited the insureds’ maximum recovery to the $1 million flood sublimit. The Appellate Division, interpreting the same policy language, reversed, concluding that the insureds could recover under both the flood and debris removal sublimits. On further appeal, in a five-to-two decision, the New Jersey Supreme Court agreed with the trial court and reversed the decision of the Appellate Division.

The Court began its analysis by noting “that absent the Flood Endorsement, the Policy would not cover any flood damage.” According to the Court, that endorsement “places a hard cap on the amount recoverable for flood damage.” The Court noted that the policy specifically provides that “[t]he most [Travelers] will pay for the total of all loss or damage caused by Flood . . . is the single highest Annual Aggregate Limit of Insurance specified for Flood shown in … the Supplemental Coverage Declarations,” which was $1 million. The Court further noted that the policy:

fortifies this hard cap by explaining that, even if multiple Annual Aggregate Limits of Insurance apply to flood damage, the Limit of Insurance specified in Section B.14 of the Supplemental Coverage Declarations is the most Travelers will pay. Section B.14 sets that Limit of Insurance at $1,000,000.

The Court observed that the Eighth Circuit’s decision in Altru Health System v. American Protection Insurance Co., 238 F.3d 961 (8th Cir. 2001), further supported its conclusion. The court in that case dealt with similar policy language, and also concluded that the insured’s losses were capped by the flood sublimit.

The insureds argued that the policy was ambiguous and that, therefore, they were entitled to coverage under the contra proferentem and/or reasonable expectations doctrines. The Court noted that, as a general rule, “courts construe insurance contract ambiguities in favor of the insured via the doctrine of contra proferentem.” The Court correctly observed that “[s]ophisticated commercial insureds, however, do not receive the benefit of having contractual ambiguities construed against the insurer.” As to whether the insureds were “sophisticated,” the Court noted that the policy at issue was a surplus lines insurance policy, which can only be obtained through a licensed surplus lines insurance broker. The Court then noted:

The Court also noted that “similar to the doctrine of contra proferentem, the doctrine of reasonable expectations is less applicable to commercial contracts.” Under that doctrine, ambiguous and/or misleading language in an insurance policy is considered in light of the insured’s reasonable expectations as to coverage. The Court did not rule out the doctrine’s application to commercial insurance policies. It just found it to be “less applicable.”

Thus, it appeared that the Court was of the view that neither doctrine was applicable because the insureds in the case before it were sophisticated commercial insureds. At the conclusion of its opinion, however, the Court stated that “[b]ecause we do not find the terms of the Policy ambiguous, we need not address Oxford’s contentions about contra proferentem or the doctrine of reasonable expectations,” thus rendering the Court’s comments dicta.

Justice Fernandez-Vina wrote the majority opinion, in which Chief Justice Rabner and Justices LaVecchia, Patterson, and Solomon joined. Justice Albin wrote a dissent in which Justice Timpone joined. The dissenting justices were of the view that the policy was “hopelessly ambiguous and needlessly complex,” somewhat dramatically comparing the policy language to the “Enigma code.” Justice Albin summarized his position as follows:

Because reasonable minds can differ about the meaning and interplay of the flood insurance and debris removal clauses in the insurance policy and because Travelers drafted the ambiguous policy terms, I believe that the insured’s interpretation should prevail under the doctrines of contra proferentem and reasonable expectations. I therefore respectfully dissent.

Justice Albin, on the other hand, essentially went with the “old school” view that insurance policies should be interpreted in such a way as to maximize coverage even when issued to sophisticated commercial insureds who are represented by equally sophisticated insurance brokers. The majority decision represents a more moderate approach in interpreting insurance policies that is consistent with the approach the Court took in Templo Fuente De Vida Corp. v. National Union Fire Ins. Co., 224 N.J. 189 (2016), which was discussed in a prior blog post. See https://njinsuranceblog.com/failure-to-provide-timely-notice-under-claims-made-policy-results-in-forfeiture-of-coverage/